By Lynn A. Marks
and Suzanne Almeida
The conviction of state Supreme Court Justice Joan Orie Melvin for corruption related to her judicial campaigns highlights the problems with partisan judicial elections: To win, candidates have to seek contributions and endorsements from lawyers, potential litigants, and special-interest groups who may appear in their courtroom.
But the case also highlights the need for reform. After all, this couldn't have happened if judges weren't elected in the first place.
Too often, unfortunately, it takes a scandal to spur reform efforts.
The conviction of Supreme Court Justice Rolf Larsen for conspiracy in the early 1990s led to reform of the judicial discipline system and constitutional change. The "kids-for-cash" scandal in Luzerne County provided ammunition to change the juvenile justice system. The recent indictments of Philadelphia Traffic Court judges have already led to action in the state Senate.
Let's hope Melvin's conviction will wake Pennsylvanians up to the need for reform, especially the merit selection of judges.
Late last month, a bill was introduced in the state Senate that would replace partisan judicial elections for appellate court positions with a merit selection system. (Local judges would continue to be elected.) Bills will also be introduced in the House.
Currently, candidates for the Supreme, Superior, and Commonwealth Courts criss-cross the state seeking political endorsements and raise hundreds of thousands of dollars (millions for Supreme Court races) from people who might appear before them once elected. It is a partisan process for a nonpartisan job. Although Pennsylvania has many excellent jurists, they reached the bench despite the partisan campaign system, not because of it. Shouldn't a system for choosing judges be designed to encourage and select the most qualified?
Under merit selection, when a vacancy occurs on one of the three appellate courts, a bipartisan citizens nominating commission of lawyers and non-lawyers would extensively screen candidates who have submitted their names and recommend a short list to the governor, who would have to nominate someone from the list. If the Senate confirmed the nominee, the judge would serve a shortened term before standing for a retention (yes-no) election for a full 10-year term and then every 10 years thereafter.
Recent polling shows the vast majority of Pennsylvanians believe that judges are influenced by campaign contributions. Further, three-fourths of Pennsylvanians believe that the most qualified judicial candidates don't win.
These results are troubling, but not surprising. Fund-raising prowess, name recognition, political connections, and luck too often determine who wins judicial elections. These factors often trump qualifications such as fairness and legal experience.
Even proponents of electing judges agree that the best candidates don't always make the best judges.
It doesn't have to be this way. If the legislature passes merit selection, voters would have a chance to amend the state constitution to change how judges are selected. They would be able to help ensure that cases are heard by qualified, fair, and impartial judges, and are decided on the facts and the law, not on political considerations.
And reform doesn't have to stop there. To help make judges more accountable for their behavior and performance on the bench, some states have implemented a process of performance surveys. Court staff, litigants, lawyers, and the judges themselves complete surveys about the strengths and weaknesses of judges.
Publicizing the results of these surveys would allow voters to make more informed decisions when a judge is up for retention. Information about the unique role of judges would also educate the public about the courts.
These performance surveys can also be used as a self-improvement tool. Many judges acknowledge the importance of continually learning and striving to be better. The surveys would also be valuable for court administrators. Areas of weakness in the judiciary could be identified and targeted for improvement through continuing education and other measures.
Excellence in the courts could also be enhanced by mandatory comprehensive ethics training for all levels of judges and court staff. Also, community education programs about the importance of courts and how the judicial process works would provide for a more informed citizenry.
Reforms such as these can't happen overnight, nor will they address every problem. But if policymakers, community leaders, judges, and everyday Pennsylvanians work together, reform can become reality.
The conviction of Justice Melvin is sad - both for the people involved and for the state's judiciary. But there can be a silver lining: increased momentum for reform, including a constitutional amendment to get judges out of the business of campaigning and fund-raising.